Karnataka High Court
Cauvery Neeravari Nigama Limited vs Sri K Venkatareddy on 3 February, 2025
Author: S.G.Pandit
Bench: S.G.Pandit
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RFA No. 428 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 428 OF 2011 (MON)
BETWEEN:
1. CAUVERY NEERAVARI NIGAMA LIMITED
OPPOSITE TO KALAMANDIR
VINOBA ROAD, MYSORE-570 001
REP. BY ITS MANAGING DIRECTOR
NOW REP. BY ITS
GENERAL MANAGER (FINANCE)
Digitally signed by
2. THE CHIEF ENGINEER
SHARMA ANAND
CHAYA
HEMAVATHI CANAL ZONE
Location: High TUMKUR-572 101
Court of Karnataka
3. EXECUTIVE ENGINEER
HEMAVATHI CANAL ZONE
TUMKUR-572 101
...APPELLANTS
(BY SRI. M.R.C. RAVI, SENIOR ADVOCATE FOR
SRI. B.R. PRASHANTH, ADVOCATE)
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RFA No. 428 of 2011
AND:
SRI. K. VENKATAREDDY
S/O SRI. K. JANGAMA REDDY
HINDU, MAJOR
CLASS I PWD CONTRCTOR
AT USHA NILAYA, BESIDE SIDDARODA
ASHRAMA AMARJYOTHI NAGARA
KUNIGAL ROAD,
TUMKUR, PIN CODE-572 101
...RESPONDENT
(BY SRI. V.B. SHIVAKUMAR, ADVOCATE)
THIS RFA IS FILED U/SEC.96, OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 30.09.2010 PASSED IN
O.S.40/2004 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE
AND CJM, TUMKUR, DECREEING THE SUIT FOR THE RECOVERY
OF MONEY.
THIS REGULAR FIRST APPEAL HAVING BEEN RESERVED
FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS
DAY, RAMACHANDRA D. HUDDAR J., DELIVERED/
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.G.PANDIT
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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RFA No. 428 of 2011
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
This appeal is directed against the judgment and
decree dated 30.09.2010 passed in OS No.40/2004 by the
Senior Additional Civil Judge and CJM, Tumkur.
2. Parties to this appeal are referred to with
reference to the ranks before the trial Court.
3. The defendants are in this appeal.
4. That plaintiff filed a suit against defendants for
recovery of sum of Rs.4,88,07,144/- from the defendants.
It is the case of the plaintiff that he is a Class-I PWD
Contractor and as per the tender invited by defendant no.1
towards construction of cement concrete lining between
100 and 103 kms. of Tumkur Branch Canal, he submitted
a tender which was accepted by the defendants and to that
effect, an agreement was entered into between the
plaintiff and the defendants on 28.02.1996.
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5. The work order was issued by the defendants
on 05.03.1996 with the condition to complete the work
within six months including rainy season of three months.
Plaintiff mobilised the required equipment, labourers to the
site and camped there. It is stated that on 10.04.1996,
the Superintendent Engineer, did inspection of the work
spot and noticed that the side slopes provided were not
proper and recommended for change of design. On
10.04.1996, plaintiff addressed a letter for clear marking
out and authorised him to construct steeper slopes. But at
the instance of the defendant, the work was stopped from
18.04.1996 on the ground that the approval was sought in
change of design. It is stated that plaintiff went on
addressing letters to the defendants vide letters dated
18.04.1996, 25.04.1996 bringing to the notice of the
defendants seeking approval of change of design and also
brought to the notice of the defendants that gravel is not
available on the site. It was informed to the defendants on
20.05.1996 by a letter stating that the supper passage at
100.5 kms. Is broken and area is getting flooded. The
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Executive Engineer concerned by his letter dated
20.06.1996 directed to suspend the work for free flow of
water. It was in force till 06.11.1996
6. It is stated that the plaintiff made several
correspondence with defendants and waited for change in
design as directed by the defendants. The Executive
Engineer issued reply admitting several abstractions and
requested the plaintiff to carry over the work wherever
there is no abstraction. Even the plaintiff has listed the
equipments he has stored at the spot after issuing the
work order. It is stated that the plaintiff completed the
work during January 1998 and to that effect, the
defendants preferred bills for Rs.37 lakh only by deducting
the sale tax and income tax.
7. It is alleged by the plaintiff that before the
completion of the work with regard to the concrete line
between 102.4 kms to 103.00 kms. It was collapsed due
to defect in the design. There were several experts given
the report with regard to the defective design including
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Karnataka Engineering Research Station, Centre for
Scientific and Industrial Consultancy for Indian Institute of
Science. It is observed that the cotton soil is found from
103 kms. and there is Alasina Tank at a distance of 80.00
mts. So also there are irrigated paddy crops on either side
of the canal. As per the reports for the causes of failure is
non providing for reinforcement in the CC lining, non
availing of super passage to drain out stagnated water and
other factors so also, causing uplift pressure in the CC line.
Though the reports suggested remedial measures but
defendant did not care for the same. The said reports
submitted by the aforesaid authorities, did not point out
any defects in the work undertaken by the plaintiff.
8. It is alleged by the plaintiff that he has
completed the work and in the month of June 1998, the
bills were prepared for Rs.63,00,000/- deducting
20,00,000/- towards F.S.T, and Rs.43 lakh were payable
by the defendants. But, defendants paid only 23 lakh. It is
alleged that because of failure on the part of the
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defendants to pay the amount being submitted as per the
bill submitted by him, after issuance of legal notice, the
plaintiff filed a W.P.No.28793/2000 seeking writ of
mandamus directing for payment of Rs.24,59,658/-. In the
said writ petition, defendants admit that they are liable to
pay Rs.46,83,586/-. An interim order was passed in the
writ proceedings. The plaintiff got issued a legal notice on
20.10.2003 and called upon the defendants to comply the
directions issued by the Hon'ble High Court. But, the Chief
Engineer concerned rejected the claim of the plaintiff vide
letter dated 07.11.2003. Therefore, the plaintiff was
constrained to file the suit claiming the suit claim from the
defendants as tabulated in para 6 of the plaint to the
extent of suit claim stated supra. The defendants are liable
to pay the same. Therefore, it is prayed by the plaintiff to
decree the suit.
9. Pursuant to suit summons, the defendant
appeared before the trial Court and it is defendant Nos.2
to 4 filed the written statement admitting about
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entrustment of a tender work as stated in the plaint and
also issuance of work order dated 04.03.1996. It is
contended that as per the agreement, a condition is
imposed on the plaintiff that there is a program of work for
allowing water by the end of June 1996 in Tumkur Branch
so as to cater the drinking water to Tumkur Town up to
125 kms. an extension of time would be given as per the
rules but without any extra rate. The other allegation
with regard to the proceedings of the work by the plaintiff
as stated in the plaint, carrying of the equipments and
men etc. is denied. It is contended that the plaintiff fails to
start the work with adequate men and machine though he
was instructed to commence the work immediately but he
went on issuing several notices. So far as change of design
as directed by the Superintendent Engineer, it is not in
dispute. According to the defendants, the said change of
design is in confirmative with Class-13(a)(1) of agreement.
The said change of design would benefit the plaintiff as the
work of excavating the land would decrease considerably.
As per the program of work from quarterly month, the
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plaintiff has failed to comply the same. Though there was a
proposal for change of design, plaintiff would have
proceeding without removing sheet, excavation of
earthwork and would have done the bed work of the canal.
Therefore, the delay could not have been attributed
against the defendants.
10. It is contended that though there was a collapse
of cement lining, it is plaintiff who is responsible for
draining out the water. The contention that there was a
damage to the super passing because of drain water is
denied. So from the report from K.E.R.S. and I.I.S.C. is
concerned, it is contended that because of improper
maintenance by the plaintiff there was damage. For this
wanton negligence on the part of the plaintiff, the
defendants are not liable. According to the defendants, the
work was to be completed on 04.09.1996. There is latches
on the part of the plaintiff and he actually completed the
work in the year 1998. Now, the claim of the plaintiff is
barred by limitation as per class-8 of the agreement, as
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computation of date began from 02.02.1997. The
defendants are not liable to pay the amount as claimed
and both plaintiff and defendants are not bound by the
agreement. It is contended that there is no provision in the
agreement for making any separate payment towards
establishment charges. The plaintiff was supposed to quote
his tender rates after taking into consideration of the
element such as materials, labours and establishment
charges. Amongst other grounds, it is prayed by the
defendants to dismiss the suit.
11. Based upon the rival pleading of both the
parties, the learned trial Court framed in all 17 issued and
one additional issue, they read as under:
"1. Whether plaintiff proves that the work was
suspended from 18/4/1996.?
2. Whether the plaintiff proves that the period
of suspension was not informed to him."
3. Whether the plaintiff proves that suspension
was in force till 6/11/96.?
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4. Whether the plaintiff process that there was
several obstructions for the works to be carried
on due to change in the design.
5. Whether the defendant proves
notwithstanding the change of design which
was pending approval and direction not to carry
on with the work, the plaintiff could have
completed the other works as contended at
page no.6 end of para No.3 the written
statement?
6. Whether the defendant proves that the work
done is not in accordance with the specification
and designs issued by the defendant as
contended in para 7 page 7 of the written
statement.?
7. What is the cause of concrete lining between
102.4. K.M to 103 K.M. to collapse. Whether
the lapses is attributable to the plaintiff or the
defendant.?
8. Whether the defendant can go back on its
chief Engineers finding in his letter dated
15/11/99 as contended in Ist sentence of
para.no. 12 page no. 12 of its written
statement.?
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9. Whether the plaintiff proves that he is
eligible for the new rates for the work done
beyond stipulated period.?
10. Whether the plaintiff proves that, he is
entitled for payment of difference in cost of
cement.?
11. Whether the plaintiff proves he is entitled
for interest.?
12. Whether the plaintiff proves that he is
entitled for idle charges.?
13. Whether the plaintiff prove that he is
entitled for compensation for longer stay at
site.?
14 Weather the defendant proves that it has
paid tendered rates it respect of claims under
Annexures A to D and consequent upon such
payment additional rates can not be demanded
as pleaded in para 30 to 33 of its written
statement.?
15. Whether the plaintiff proves that he is
entitled to equitable rates as claimed in
Annexure-E.?
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16. Whether the defendant proves delay in
execution of work is solely attributable to
plaintiff and hence, claim under Annexure-F is
not maintainable.?
17. To what reliefs the parties are entitled
for.?
An additional issue is framed as under,
1. Whether the suit of the plaintiff is barred by
Law of limitation.?"
12. Before the learned trial Court, to substantiate
the case of the plaintiff, he himself entered the witness
box as PW1 and got marked Exs.P1-P27 and closed
plaintiff's evidence. To rebut the evidence of the plaintiff,
one Srikanta Murthy an official of the defendant entered
the witness box as DW1 and on behalf of defendants
Exs.D1-26 are marked. Closed defendants evidence.
13. The learned trial Court having heard the
argument of both sides, and on perusal of the evidence
placed on record, answered issues Nos.1, 3 4, 9, 10, 11,
12, 13, 15 in the affirmative and other issues in the
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negative and ultimately, decreed the suit of the plaintiff
directing the defendants liable to pay Rs.4,34,99,380/- to
the plaintiff together with interest @ 12%p.a. from the
date of suit till realisation fastening the liability on the
defendants joint and several.
14. Now, the defendants have preferred this appeal
challenging the impugned judgment of fastening the
liability on the defendants jointly and severally to pay the
amount so stated in the decree.
15. Trial Court records are secured.
16. The learned counsel for the appellants-
defendants ardently submits that the claim of the plaintiff
itself is barred by limitation as because though the work
was completed in the year 1998 as per the case of the
plaintiff, the plaintiff has filed the suit in the year 2004.
Without any cause of action, the plaintiff has filed the suit
which is time barred. It is further submitted that as per the
conditions stipulated in the tender, the work was stopped
on 20.06.1996 due to letting out of water to Tumkur town
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and on 06.11.1996, the defendants directed the plaintiff to
resume the work with a request to complete the work
expeditiously. There is no proper adherence to the request
of the defendants by the plaintiff.
17. The learned counsel for the defendants would
further submits that the stoppage of the work was strictly
in accordance with the specific condition of the contract
and now the plaintiff cannot contend that the defendants
were responsible for delay in completing the tender work.
In the month of November 1996, itself the respondents
started correspondence with the plaintiff and even plaintiff
also started addressing letters that defendants should give
revised dates for the work executed beyond the original
tender. This claim of the plaintiff is contrary to the tender
condition. The learned counsel for the defendants would
further submit that the plaintiff is not entitled for any new
rates for the work done beyond the stipulated period and
whatever he is entitled is as per the agreement. Even the
appellant has paid the revised rates for all the items of the
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work as per the agreed tender conditions as admitted by
the respondent in the cross examination. In view of the
proviso to Section 70 of the Indian Contract Act, the
learned counsel for the defendants would submit that the
work so executed by the plaintiff was under non gratuitous
contract. Therefore, the plaintiff is not entitled for new
rates. Based upon the principles laid down upon the
provision upon 70 of the Indian Contract Act, the principle
of "Quantum meruiut" i.e., if any person does any work
without any agreement and if the said benefit has been
appropriate by the other party, then party who has done
the work is entitled for payment to the extent of benefit
taken by the other party. Therefore, the principle is aptly
applicable to the claim of the plaintiff. There is no
agreement between the plaintiff and the defendants that
benefit is taken by the defendants.
18. The learned counsel for the defendants further
would submit that as per the plaint averments, the plaintiff
has claimed marked rate, but only claiming schedule rate
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for the works done beyond in excess of the agreement is
not permissible. The quantity of the work done and
equitable rate so claimed by the plaintiff is denied by the
defendants. According to the learned counsel for the
defendants, the scheduled rate and rates of the plaintiff so
claimed by the plaintiff is the own assumption of the
plaintiff. Ex.D20 shows the comparative statement
showing the equitable rates claimed by the plaintiff. It is
not considered by the trial Court. The learned trial Court
adopted a policy of pick and chose in arriving at a
conclusion. The learned counsel for the appellants-
defendants further would submit that rightly the trial Court
has rejected the claim of idle charge of labour, but upheld
the clam of the plaintiff with regard to idle charge of
machinery which is incorrect. There is an admission on the
part of the plaintiff in his cross examination having
incurred an expenses of Rs.35,50,800/- towards idle
charges of the machinery and same is reflected in the
expenditure account. The learned counsel for the
defendants would submits that the trial Court has
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committed error in arriving at a conclusion that the
plaintiff is entitled for the amounts so decreed. So far as
preparation of the bill with regard to Rs.37,00,000/- the
trial Court has committed error and has wrongly passed an
order to release the said amount. Amongst other ground
including the rate of interest charge on the suit claim, the
learned counsel for the defendants would submit that the
trial Court has committed grave error in decreeing the suit
as prayed for. There is no proper appreciation of evidence
by the trial Court. In addition to submitted fact of the case
as well narration of evidence placed on record, it is
submitted by the learned counsel for the appellants -
defendants to set aside the impugned judgment and
dismiss the suit.
19. In contrast to this submission, the learned
counsel for the plaintiff-respondent justifies the findings of
the learned trial Court as well as reasons given thereon in
decreeing the suit of the plaintiff. According to the
submission of the learned counsel for the plaintiff-
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respondent, the claim of the plaintiff is not barred by
limitation as there was a continuing cause of auction to file
a suit for recovery of amount. Several correspondence
were made by the plaintiff brining to the notice of the
defendants about the delay being caused in completing the
work because on the lapse of the defendants. At the
instance of the Superintendent Engineer, the design was
sought to be changed and though several correspondence
were made to change the design but defendants did not
comply the request of the plaintiff. Even the Executive
Engineer of the defendants admitted the cause of delay on
the part of the defendants by addressing reply to the
plaintiff.
20. The learned counsel for the plaintiff would
submit that the trial Court has based upon the evidence
and admissions of DW1 has rightly concluded that there is
lapse on the part on the defendant and at the instance,
there is delay and not on the part of the plaintiff. The
learned counsel for the plaintiff would further rely upon the
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findings of the trial Court and pleadings of the plaintiff
inconsonance of the same the evidence placed on record
both oral and documentary. Therefore, supporting the
reasons assigned by the trial Court, it is prayed by the
learned counsel for the plaintiff to dismiss the appeal by
confirming the impugned judgment.
21. We have given our anxious consideration to the
arguments of both the side. Meticulously perused the
records.
22. In view of the rival submission of both the side,
the following points arise for our consideration:
1) Whether the trial Court has
committed any illegality in holding
that at the instance of the
defendants there was a delay in the
completion of the work and thereby
plaintiff has to meet additional
expenses towards purchase of the
materials to complete the work
entrusted to him?
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2) Whether the trial Court has
committed any illegality or infirmity
in appreciating the evidence placed
on record by both the parties in
holding that the work was carried
out by the plaintiff in accordance
with the specification and designs
supplied by the defendants?
3) If so whether the trial Court is
right in holding that plaintiff is
eligible for new rates as a work was
done beyond the stipulated period at
the instance of the defendants?
4) Whether the judgment and decree
of the trial Court suffers from any
infirmity or illegality and require
interference by this Court?
5) What order?
Point Nos.1 to 3 are discussed together.
23. Before adverting to the other aspects of the
case, let us analyse the admitted facts between both the
parties.
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i) Plaintiff is a Class-I PWD
Contractor applied as per the
tender publication published
by defendant No.1 for
construction of cement
concrete lining between 100
and 103 kms. Of Tumkur
branch canal.
ii) The tender so submitted by the
plaintiff was accepted and to
that effect on 28.02.1996 an
agreement was entered into
between plaintiff and
defendants as per Ex.P1.
iii) As per the agreement, it was
stipulated that plaintiff has to
complete the said work within
six months including three
months rainy season.
iv) Plaintiff mobilised the required
equipments, labours to the
site.
v) The Superintendent Engineer
visited the place of work on
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10.04.1996 and noticed that
the site slopes provided were
not proper and recommended
for change in design.
vi) There were several
correspondences between
plaintiff and defendants
seeking approval of the
change in design vide letters
dated 10.04.1996,
18.04.1996, 25.04.1996,
20.05.1996.
vii) The work was stopped by the
defendants on 18.04.1996 on
the ground of change in the
design.
viii) Plaintiff informed the
defendants by his letter dated
20.05.1996 that super
passage at 100.5 kms. is
broken and the area is getting
flooded.
ix) The Executive Engineer
addressed a letter to the
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plaintiff dated 20.06.1996 and
directed to suspend the work
for flow of water and the said
flow of water was in force till
06.11.1996.
x) The Executive Engineer
admitted several obstruction
brought to his notice by the
plaintiff but requested the
plaintiff to carry out the work
wherever there are no
obstructions.
xi) Plaintiff completed the work
entrusted as per the tender by
January 1998.
xii) None of the defendants or any
superior officers or experts
found any defects in the work
done by the plaintiff.
xiii) The claim of the plaintiff was
rejected by the Executive
Engineer by his letter dated
07.11.2003.
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24. These are all the admitted facts with calendar of
events which have taken place with regard to the
construction of the cement concrete lining between 100
and 103 kms. of Tumkur branch canal so accepted by the
plaintiff.
25. Now, the grievance of the plaintiff is that by
issuing a notice to the defendants he claimed the payment
on revised rates for the works done after the agreement
period, payment of idle charges, payment towards longer
stay at a site of work including the amount held up as FS.D
and EMD. Release of all the amount for the work done
despite the bill prepared by the defendants, different cost
of the cement together with interest at the rate of 12%
p.a. from 19.07.1999 till filing of the suit.
26. The plaintiff has mentioned his claim in para.6
of the plaint as under:
i. Pockline - 1 no.
ii. Mixers & Vibrators - 6 & 12
iii. Tippers - 4 nos.
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iv. Louring and Crushers - 1 and 2
v. Crushers - 1 no.
vi. Other Necessary tools - as
required for he work
vii. Labourers are plenty - 100 nos.
viii. Establishment consists of
Managers, Site Engineers,
Supervisors, Clerk etc. as required
for the construction work at camp.
ix. Camping equipments"
27. PW1- plaintiff throughout his evidence has
stated the entire contents of the plaint averments and also
narrated the placement of equipment/establishment so
also other required machinery at the spot. He is specific in
his evidence about lapse on the part of the defendants in
complying the terms and conditions of the agreement.
According to him, he has claimed only scheduled rates.
28. This PW1 is cross-examined by the defendants
intensively. It is admitted by him that as per the
conditions, he had agreed to stop the work whenever there
is request to provide water to Tumkur town. He denied the
suggestion that he has stopped the work on 04.06.1996.
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Even he admits that as per condition No.12A, it was fourth
defendant who had powers to change the design. He
further states that, it was defendants who got changed the
design so also he agreed for removal of silt so also digging
at the spot. He further states that, there was further new
agreement in between himself and defendants. He further
states that as per the agreement, he has to take steps to
close the spot for the purpose of flow of the water to the
`Nalas`. It is suggested to PW.1 that on 24.6.1996, the
fourth defendant asked him to repair the super passage.
As per Schedule-B, he has to charge the agreed rate for
the purpose of removing the silt and defendants agreed to
pay for the same. He admits that, as per Schedule-B,
defendants have provided the rate as per the agreement
and as per the Labour Act, he has completed the work. The
suggestion that he has not carried out the work in
accordance with the Labour Act is denied by him. He has
denied all other suggestions directed to him.
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29. Whereas, DW.1 an official of the defendants
though reiterates the contents of the written statement,
but, in the cross-examination, he has given sufficient/
substantial admissions. He admits that in the counter filed
before this Court in the writ petition, it is admitted by the
defendants that they are due to pay Rs.46,86,586/- to the
plaintiffs. Further, he admits that, even after the
completion of the work, no amount is paid to the plaintiff
and it was told to him that after furnishing the bill it will be
paid. He admits that, plaintiff has carried out sufficient
work as per the directions of the defendants. The account
book containing the particulars of the work carried out by
the plaintiff is with the defendants. He admits that in the
work carried out by the plaintiff, there is a falling of lining
portion and because of that, money is not paid to the
plaintiff. He further admits that after rectification of the
same, they have agreed to pay the amount. He admits
that, the canal lining work was only entrusted to the
plaintiff and prior to him, somebody has done the work.
They have obtained report regarding falling of lining. He
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admits that, the Karnataka Engineering Research Institute
had inspected the spot and submitted a report as per
Ex.P12 so also their own Engineers have given the report
pointing out no defect in the work carried out by the
plaintiff. He admits that, from month of June till November
in the said canal there is a flow of water to supply the
same to Tumakuru Town. He admits that after April 1996,
plaintiff brought the labours, equipments, machineries and
started the work. There was no excavation. As per the
contract, plaintiff had to use the steel and thereafter it was
informed to him not to use the steel. Thereafter, by
putting the gravel a thickness was made to the extent of
Rs.1.2 mtrs. Even this fact is brought to the notice of
technical sanction committee and based upon the report of
technical committee they took the decision with regard to
slope design by not using the steel etc.. As per his
evidence, the report of Indian Institute of Science as well
as the technical report are true and correct. In the further
cross-examination, he states as under:
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30. This evidence spoken to by DW.1 goes a long
way to defeat the defence of defendants. The amount
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deposited as EMD and FSD is still with the defendants. He
further admits that, after trimming the work spot only, it is
possible to put the lining. He further admits that, as the
canal is old, it requires more trimming and further admits
that, because of change in design with regard to the slope,
the work became more with regard to the digging to
construct the sloping. He further admits that, except falling
of the canal sloping almost the plaintiff has completed the
work. He admits that, the work force and men and
machinery came to the spot on 20th 1996 and March until
the completion of the work, they were there and plaintiff
has demanded his claim towards the same. He states that
there was no discussion or thinking of providing the
schedule rate as claimed by the plaintiff and it was not
considered. He admits that as per the schedule rates only,
plaintiff has claimed his claim in the suit. He further admits
that, whatever the report being submitted by the aforesaid
authorities are accepted by his Department.
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31. On perusal of said reports, the said authorities
have not found any defects or mistake with the execution
of work by the plaintiff. This DW.1 deposed ignorance with
regard to date of the closure of work by the plaintiff. But,
admits that plaintiff has completed the work. He states
that, as per the technical sanction committee report, a
direction was issued not to use the steel but, to make the
thickness by using gravel. He admits that, after
commencement of work by the plaintiff such a decision
was taken not to use the steel. He further states that no
claim is filed by the defendants claiming amount from the
plaintiff. He further states whenever there is alisi pond,
there is no space for leaving the water and even there
were no provision for leaving the water and thus water has
to flow in the Nala. No provision is made for leaving the
water to the pond and no super passage is constructed. He
admits that, part of the amount is given to the plaintiff and
after completion of the work, it was agreed to pay the
amount. He admits about the deposit of EMD and FSD by
the plaintiff.
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32. While evaluating the evidence adduced by both
the side, the learned trial Court considered issues nos. 1 to
3 together 4 and 5 together and other issues
independently and categorically culled out the admissions
of DW.1 during the course of its discussion. The learned
trial Court has specifically discussed with regard to the
lapse on the part of the defendants. The Executive
Engineer concerned was not examined and it was he who
used to supervise the work entrusted to the plaintiff. It
was agreed in the agreement that if any dispute arises in
between plaintiff and defendants, the decision of
superintending engineer is final. But, there is no evidence
that, the claim of the plaintiff is brought to the notice of
superintending Engineer by the defendants.
33. Throughout the plaint averments, plaintiff is
specific that, because of the directions of the defendants to
stop the work, he had wait along with his all men and
machineries as because, the defendants decided to change
the design and they waited for approval to get the new
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design. Because of this, he is specific that, he was made to
work beyond the stipulated time, therefore he is entitled
for fresh rates. This assertion and claim of the plaintiff is
denied by the defendants.
34. On scrupulous reading of the documents
produced by the plaintiff i.e. by way of correspondences so
marked in this case do suggest that, there were several
correspondences made by the plaintiff with the defendants
and they are marked at Ex.P3 P4 and P6 P7, 8 and
ultimately Advocates notice at Ex.P15 was issued. Receipt
of these letters is not denied by the defendants. Plaintiff
has also produced three reports Ex.P10, 11 and 12 i.e. of
KERC, IISC and KERC respectively and these reports are
very much silent about any defects in the work carried out
by the plaintiff. Even the Superintendent Engineer
addressed letter as per Ex.P13 bringing to his notice that
the work done by plaintiff is satisfactory. There was some
rectification deed. As because, defendants did not make
any payment, plaintiff filed writ petition as per Ex.P18
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wherein certain order was passed by writ court. The
defendants categorically admitted about the due towards
plaintiff's work from them. The log books and other
documents are produced by the plaintiff and even the bills
also have been produced by the plaintiffs which are not
denied by the defendants in material particulars.
35. From the evidence of PW.1 and suggestions
directed to him, so also admissions given by DW.1 do
suggest that, the said delay was caused not at the
instance of the plaintiff but, because of the decision being
taken by the defendants to change the design as well
stopping of work to flow the water to Tumakuru town
through the said canal. Thus, as rightly concluded by the
trial Court, there was no fault on the plaintiff to complete
the work beyond the stipulated time.
36. As per clause 13-A(i)(o) of the agreement, it
was Executive Engineer who had power to make any
alterations, omissions, additions, substitutions with regard
to the original specification designs drawings and can give
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instructions which appear to him necessary. As per this
clause only, the Executive Engineer has suggested certain
change in design and directed the plaintiff to supply the
new design in place of old design which has consumed
sufficient time. Even as per this clause, as per the decision
taken by the Executive Engineer to change the design, the
plaintiff has to carry out the work, in accordance with the
instructions given by the Executive Engineer. This
variations so suggested by the defendants was carried out
by the plaintiff as per the aforesaid three reports. The
learned trial Court has culled out the said clauses in its
judgment and has come to the conclusion that, because of
delay in carrying out the work at the instance of the
defendants, plaintiff had to meet extra expenses. It was
directed to the plaintiff to stop the work. Even DW.1
admits that plaintiff to carry out as per the schedule which
is claimed in the plaint. When there was delay on the part
of the defendants to approve the new design or change or
evidence brought on record, the time stipulated as per the
agreement expired, the plaintiff proceeded with a work as
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admitted by DW.1 then, no fault can be found with the
plaintiff. When delay is caused at the instance of the
defendants, definitely plaintiff is entitled for schedule rates
for the work carried out by him beyond the stipulated
period as agreed. Though the defendants contend that
plaintiff is not entitled but, the evidence of PW.1 clearly
shows that the tender so accepted provided a rate of
cement at the rate of Rs.124/- per bag and plaintiff had
used 15,000 bags of cement. This fact is not denied by
DW.1 throughout his cross-examination. To that effect,
plaintiff has produced the bunch of bills as per Ex.P44
which are marked without any objections from defendant
side, thereby the plaintiff had to spend Rs.26/- more
towards each cement bag. In addition to the value of
cement per bag, it is not ruled out that, plaintiff had to
meet other incidental expenses also towards loading
charges, transportation etc., Though the learned counsel
for the defendants relied upon various judgments and
evidence but, purchase of the cement at the rate of
Rs.150/- per bag by the plaintiff from various places as
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stated in Ex.P44 bunch of bills and its loading and
transportation charges is not denied by the defendants. If
that is so, now the defendant cannot escape the liability
towards plaintiff.
37. Even Clause 59 of the agreement, though
specifically states about prohibiting compensation for delay
beyond the contractual period, but, Sec.70 of the Indian
Contract Act, comes to the rescue of the plaintiff wherein,
it states that, it is the obligation of a period enjoin benefit
of non-gratuitous Act. This section says
"Where a person lawfully does anything for
another person or delivers anything, not intending
to do so gratuitously such other person enjoins
the benefit thereof, the latter is bound to make
compensation to the former in respect of or to
restore, the thing, so done or delivered."
38. Section 70 of Indian Contract Act says, though
there is an agreement, even it need not be expressed in
words to pay the compensation but, it is reasonable and
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worth to say that, a claim for compensation/rates now
claimed by the plaintiff is to be granted. This Section 70 of
Indian Contract Act comes into operation as it is not based
on any subsisting contract between the parties. Its basis is
that, something had been done by one party from the
other which the other party has voluntarily accepted.
Therefore, Section 70 and para. 3 of Section 73 are based
on the `Doctrine of Restitution' which prevents unjust
enrichment by retaining anything received by a party
which does not belong to him and he must return it to the
person from whom he received it and if action is not
possible pay him in its money value.
39. Based on the provisions of Section 70 of the
Indian Contract Act, the principle of `Quantum meruiut'
i.e., if any person does any work without any agreement
and if the said benefit has been appropriated by the other
party, then party who has done the work is entitled for
payment to the extent of benefit taken by the other party.
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Therefore, this principle is aptly applicable to the claim of
the plaintiff.
40. Thus, by applying the provisions of Section 70
and 73 of IC Act as admitted by DW.1, certainly
defendants cannot deny the work done by the plaintiff
beyond the stipulated time at their instance and he was
compelled to spend more amount than stipulated in the
agreement and had to incur Rs.26/- more per cement bag.
It is not the case of the defendants that, they entered into
contract with plaintiff without any authority. The plaintiff
met the said expensed who was entrusted with the work
even beyond the period stipulated and he was under legal
compulsion to complete the work and there was a pressure
to complete the work. Therefore, the plaintiff has claimed
the scheduled rates which cannot be denied by the
defendants. Likewise, plaintiff has claimed certain amount
from the plaintiff as stated above towards various claims
and because of that delay and stoppage of the work by the
defendants, the plaintiff was to pay the idle charges, so
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also other labour charges. Though the defendants deny
about the same, but, it is plaintiff who is ultimately
affected and there is failure to discharge the liability by the
defendants. Therefore, under Section 72 of the Indian
Contract Act, the plaintiff has a right to enforce his claim
and make the defendants liable for the same who are
guilty of delay. Section 73 of the Indian Contract Act
speaks of compensation for loss or damage caused by a
breach of contract. If the provisions of Section 73 of IC Act
is applied to the present facts of the case, the first
paragraph of Section 73 deals with compensation for loss
or damage caused by breach of contract. In this case,
there is no breach of contract and contract is not broken.
But, however, the second paragraph speaks of no
compensation is payable for any remote or loss or
damage. But, the fourth paragraph provides that while
assessing the damage, the existing work carried out has to
be taken into consideration and such plaintiff cannot be
put to any inconvenience and his claim cannot be denied.
Even defendants have not stated that there is a breach of
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contract. A special right was given to the plaintiff for
extending the time making him to comply the obligations
of completing the work. no notice was issued by the
defendants that they have terminated the work contract.
By Feb. 1999, he completed the work.
41. It is a suit for recovery of money based upon
the contract entered into between the plaintiff and
defendants and the contract is concluded and now the
plaintiff has claimed the scheduled rates. There is no
breach of contract at any point of time. Therefore, as
rightly concluded by the trial Court, as the delay occurred
at the instance of the defendants and in view of the strict
provisions of Indian Contract Act, the defendants are
bound to pay the amount to the plaintiff.
42. On the suit claim, the plaintiff has claimed
interest at the rate of 24% but, the learned trial Court has
granted 12% interest on the same from the date of suit till
its realization by applying the provisions of Sec.34 of CPC
and rightly concluded that defendants are liable to pay the
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suit claim together with interest at 12% p.a. It has come
in the evidence of PW.1 that, he had employed 100
labourers by paying them Rs.40 per day i.e.Rs.4,000/- per
day and he claimed such amount for 320 days and he has
produced Ex.P31 and 32 giving the particulars of
labourers. Though it is the case of the defendants that, no
proper account is maintained, but, in view of the clauses
mentioned in the agreement, the plaintiff has to subscribe
his workers to the contractor's benevolent fund to the
extent of 0.10 percent and to that effect, amount is to be
calculated. The defendants have to deduct the subscription
furnished by the plaintiff. As rightly discussed by the trial
Court, there is no pleading to that effect by the plaintiff.
Thus, the learned trial Court has concluded about
entitlement of labour charges. The documents produced by
the plaintiff i.e. log books marked at Ex.P25 to 30 shows
the details of machineries and their use by the plaintiff
during the aforesaid days. For the delay caused by the
defendants, plaintiff has claimed the amount for men and
machineries. We do not find any factual error in view of
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the documents so produced. These documents are
undisputed by the defendants. Though the defendants
contend so many factual aspects but, they admit about the
delay caused by them. There is admission by DW.1 in the
cross-examination that, "if there was no change in the
design approval, the work would have been completed
within the time stipulated in the agreement" itself shows
that, at their instance there was a delay and plaintiff has
to meet extra expenses because of that delay.
43. In view of all these factual features coupled with
admissions of DW.1, it can very well be stated that, the
learned trial court is right in concluding that the plaintiff is
entitled for suit claim.
44. Though the defendants contend that, claim of
the plaintiff is barred by law of limitation but, in view of
the stand taken by the defendants in the written statement
and stand taken by DW.1 in the cross-examination, his
admissions in the cross-examination do establish that
defendants still admit and acknowledge the subsisting
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liability towards the plaintiff. Therefore, plaintiff can take
the benefit of Section 19 of Indian Limitation Act. That
means when there is acknowledgement of liability by
defendants and by virtue of correspondences made by
defendants' officials acknowledging the work carried out by
the plaintiff and so also expressing their inability to pay
the amount etc., now the defendants cannot contend that
they are not liable to pay the suit claim as it is time
barred. Therefore, we do not find any factual or legal error
committed by the trial Court in decreeing the suit.
Therefore, the claim of the plaintiff is based upon the
factual pleadings and the work carried out by him. Though
the defendants recognize the work of the plaintiff and
appreciate that there are no defects in the work but, have
withheld the amount due to the plaintiff which has made
him to wait till this day to get his own money for which he
is legally entitled. Therefore, the aforesaid points are
answered accordingly.
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45. In view of our discussion made in the foregoing
paras, appeal fails and is liable to be dismissed with cost of
respondent. Resultantly, we pass the following:
ORDER
i. Appeal filed by defendants is
dismissed with cost of the
respondent/plaintiff.
ii. Judgment and Decree dated
30.09.2010 passed in OS No.40/2004
by the Senior Addl.Civil Judge and
CJM, Tumkur, is hereby affirmed.
iii. Defendants are directed to pay the
decreetal amount with interest to the
plaintiff within two months from the
date of receipt of a certified copy of
the Judgment.
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iv. Send back the trial Court records
along with a copy of this judgment
forthwith.
Sd/-
(S.G.PANDIT)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK/CT-VG
